In anticipation of a Senate hearing today on immigrants and their right to due process, the American Immigration Council has released a report entitled “Two Systems of Justice: How the Immigration System Falls Short of the Ideals of Justice.”
The report explores how the justice system is different for US residents and for immigrants. There are rights and expectations for what happens when a person is arrested: we expect that the police will read him his Miranda rights and that he will have access to a lawyer. He has the right to ask for bail and to have a speedy trial before a judge and jury. Evidence against him obtained unconstitutionally is expected to be thrown out, and he may appeal the trial’s outcome. While the justice system does not always work perfectly, it at least rests upon a foundation of rights and rules that afford defendants their day in court.
The immigration justice system, however, as the AIC writes today at the Hill, “operates under an entirely different set of rules, a set of rules that falls far short of the American values of due process and fundamental fairness.” The article continues:
In fact, the immigration system lacks nearly all of the due process protections that come into play in the U.S. criminal justice system. Immigrants facing deportation have neither a right to appointed counsel, nor a right to a speedy trial. Harsh immigration laws may apply retroactively, unlawfully obtained evidence may be used to prove the government’s case, and advisals of fundamental rights are given too late to be meaningful. Moreover, many immigrants are barred from appealing removal orders to a federal judge. Violations of due process that could not occur or would not be tolerated in the criminal justice system abound in the immigration system.
This infographic from AIC helps explain the wide chasm of differences between the two systems:
The AIC’s report includes recommendations that would bring the immigrant justice system in line with American values of due process:
Chief among these recommendations is that immigrants must have access to counsel at every stage of the removal process, including at the time of arrest. The government should appoint counsel to immigrants who are unable to retain a lawyer on their own. In addition to counsel, other safeguards must be implemented to equalize the playing field. For example, immigrants should have access to immigration records and any evidence that might be used by the government against them; the government should not be allowed to rely on evidence obtained unlawfully; and all immigrants must be afforded the right to appeal their removal order to federal court.
Moreover, the penalty for violating an immigration law must be proportionate to the violation. This means that immigrants should not be deported for conduct that did not make them deportable at the time it took place. It also means that there should be statutes of limitations on most grounds of deportability, and there should be broad waivers of removal that allow immigration judges to consider the severity of the immigration violation as well as the effect removal will have on the immigrant and his or her family. Finally, our laws must treat immigration detention like the deprivation of liberty that it is. All immigrants should be afforded a prompt bail hearing, and the government must use alternatives to detention whenever possible.